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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ______
IN RE GENERAL MOTORS ONSTAR LITIGATION ______Master File No. 2:07-CV-11830
THIS DOCUMENT RELATES TO: All Actions
______:
Consolidated Master Class Action Complaint
Notice To Preserve Records And Documents
You are hereby notified to preserve all records and documents in all forms and formats (digital, electronic, film, magnetic, optical, print, etc.) during the pendency of this action that are relevant or may lead to relevant information and to notify your employees, agents and contractors that they are required to take appropriate action to do so.
Introduction
1. Plaintiffs bring this class action against General Motors Corporation and
OnStar Corporation (“OnStar”) due to the failure of analog OnStar equipment in their
vehicles and termination of OnStar service.
2. OnStar is a unique in-vehicle telecommunication safety system that
provides automatic crash notification to emergency responders, stolen vehicle location, 2:07-cv-12036-SFC-RSW Doc # 13 Filed 07/25/07 Pg 2 of 39 Pg ID 76
remote door unlock and remote diagnostics in the event of problems with airbags, anti- lock brakes or other systems. According to OnStar:
[OnStar provides] critical communications links among members of the public, emergency medical service providers and emergency dispatch providers; public safety, fire service and law enforcement officials, and hospital emergency and trauma care facilities.
* * *
The life-saving benefits of OnStar are intended not only for initial vehicle purchasers but also for subsequent owners over the life of the vehicle.
3. As a result of defendants’ actions, plaintiffs and thousands of other OnStar
owners, lessees and subscribers will lose the benefits of this safety system, will be
exposed to an increased risk of serious personal injury and harm, and their motor vehicles
will lose substantial value. Plaintiffs seek damages and appropriate injunctive relief for
themselves and all others similarly situated.
The Parties
Plaintiffs
4. Plaintiffs Robert G. Gordon and Sarah L. Gordon are citizens and residents
of Pennsylvania. Their address is 216 Chilton Way, Fairless Hills, Bucks County,
Pennsylvania.
5. Plaintiff Howard Morris is a citizen and resident of Pennsylvania. His address is 342 E. Main Street, Suite 100, Leola, PA 17540.
6. Plaintiff Jack Jacovelli is a citizen and resident of New Jersey. His address
is 5 Dorado Road, Laurel Springs, NJ 08021.
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7. Plaintiff Bruce Johnson is a citizen and resident of the State of Washington.
His address is P.O. Box 670 Edmunds, Washington, 98020.
8. Plaintiff Walter Rochow is a citizen and resident of Connecticut. His
address is 25 Hamden Hills Drive, Hamden, Connecticut.
9. Plaintiff Irene Nary is a citizen and resident of Ohio. Her address is 31
Periwinkle Drive, Olmsted Falls, Ohio.
10. Plaintiff Julia Maurer is a citizen and resident of Pennsylvania. Her address
is 10561 Buchanan Trail West, Mercersburg, Pennsylvania.
11. Plaintiff Robert B. Weaver is a citizen and resident of Virginia. He resides in Manassas, Virginia.
12. Plaintiff Laurie Christ is a citizen and resident of New York. Her address is
6 Kenwood Drive, Massapequa, New York..
13. Plaintiff Jonathan R. Peckat is an individual residing at 2050 Lila Street,
Saint Helen, Michigan.
14. Plaintiff William Todd Berry is a citizen and resident of California. He
resides in Bakersfield, California.
15. Plaintiffs Susan Nelson and Norman Nelson (“Susan and Norman Nelson”)
are citizens and residents of California. Their address is 6405 Bonsall Dr., Malibu,
California..
Defendants
16. Defendant GM is a Delaware corporation with its principal place of
business and national headquarters located at 300 Renaissance Center, Detroit, Michigan.
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GM designs, tests, manufactures, markets, advertises, warrants, distributes, sells or leases cars, trucks and sports utility trucks under several prominent brand names, including, but not limited to: GMC, Chevrolet, Pontiac, Oldsmobile, Buick, Cadillac, Saturn and SAAB throughout the United States.
17. Defendant OnStar is a wholly owned subsidiary of GM and was at all times expressly and impliedly controlled and directed by GM; OnStar also maintains headquarters in Detroit, Michigan.
18. At all relevant times, defendants acted by and through their agents,
servants, workmen and employees who were then and there acting within the course and
scope of their permission, agency, employment and authority, in furtherance of
defendants’ businesses, and otherwise on behalf of defendants.
19. At all relevant times, OnStar engaged in co-ventures with GM with respect
to the sale and distribution of OnStar systems and equipment.
Jurisdiction and Venue
20. Plaintiffs bring this action seeking class-action status and alleging violations of the Michigan Consumer Fraud Act, breach of express and implied warranties, fraudulent omission, breach of contract and injunctive relief. This Court has jurisdiction over these claims pursuant to 28 U.S.C. 1332 (d).
21. Venue is proper in this District because defendants GM and OnStar are headquartered in this District and many of the acts and transactions giving rise to the violations of law alleged herein occurred within and emanated from defendants’ offices in this District. Specifically, the marketing and sales materials discussing OnStar, and
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containing the material misstatements and omissions alleged herein, were designed, developed and approved by GM and OnStar personnel at facilities in this District.
Background
22. In the 1990s GM and OnStar developed the OnStar telematic system.
23. OnStar is a telematic safety communications system for motor vehicles
which is integrated into the vehicle. The OnStar system enables occupants of vehicles
with OnStar equipment and service to receive emergency service and information
anywhere in the United States and portions of Canada. OnStar describes the system on
its website this way:
OnStar's in-vehicle safety, security, and information services use Global Positioning System (GPS) satellite and cellular technology to link the vehicle and driver to the OnStar Center. At the OnStar Center, advisors offer real-time, personalized help 24 hours a day, 365 days a year.
http://www.onstar.com/us_english/jsp/explore/onstar_basics/technology.jsp
24. GM and OnStar have developed and operated the OnStar system
throughout the United States and Canada since about 1998.
25. At all relevant times, GM maintained the policy and practice of manufacturing and selling OnStar equipped vehicles and providing service and parts for safety components through a network of authorized dealers.
26. OnStar equipment and service for GM vehicles is unique and is not available from sources other than defendant GM.
27. By December 2006 there were approximately 4.5 million OnStar
subscribers who owned or leased GM manufactured vehicles. There were also many
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other owners and lessees of vehicles with OnStar telematic equipment who did not
maintain their subscriptions.
The Types Of OnStar Equipment Sold By Defendants
28. From its inception and continuing to the present GM manufactured and/or sold all of their OnStar capable vehicles with wireless telematic cellular equipment. This telematic equipment would enable the vehicles to communicate with the OnStar Centers through third party cellular service providers by use of confidential access numbers.
29. OnStar’s cellular system used both the Advanced Mobile Phone System
(“AMPS”) and the Code Division Multiple Access (“CDMA”) cellular standards. AMPS
is analog; CDMA is digital. Although the two standards are not compatible, by 2001 most
cellular equipment (i.e, cell phones) had both capabilities and could switch back and
forth, depending on the kind of signal available.
30. GM touted and sold analog OnStar systems as standard and optional equipment that would provide added safety, security and convenience. When sold as optional equipment, GM would charge customers added fees of several hundred dollars for the OnStar equipment.
31. At various times, GM manufactured, distributed and sold OnStar capable vehicles with three types of wireless cellular equipment: a) Analog-Only; b)
Analog/Digital Ready; and c) Dual-Mode (Analog/Digital).
32. GM vehicles with analog-only equipment were manufactured to operate only on analog wireless networks. To operate over digital networks, the vehicles’ wiring
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and sensors would have to be replaced, and their communication modules replaced with
dual mode (analog/digital) modules. As of February 2007, there were approximately
450,000 GM/OnStar subscribers with this type of analog-only telematic equipment.
33. GM vehicles with analog/digital-ready equipment have wiring and sensors that permit the vehicle to operate on digital networks by replacing the communications module with dual-mode (analog/digital) modules. As of February 2007, there were approximately 1,500,000 GM/OnStar subscribers with vehicles that had this wiring and sensor architecture which could be upgraded in this manner.
34. GM vehicles manufactured with dual-mode (analog/digital) modules would
operate over digital wireless networks without modification or upgrade.
35. At the time of purchase, GM did not disclose to plaintiffs and other
purchasers and lessees that the OnStar equipment in their vehicles was analog-only and
would not function on digital cellular systems, or that their equipment was analog/digital-
ready and would not function on digital cellular systems without substantial expenditure.
Defendants’ Unfounded Reference To The FCC Rule Change As A Basis For Dropping Analog OnStar Service
36. In May 2001, the FCC proposed to eliminate the rule that all wireless phone carriers must operate on analog networks for wireless calls. Notice of Proposed Rule
Making, 16 FCC Rcd. 11169 (May 17, 2001).
37. Throughout their communications with OnStar customers, defendants referred to this rule change as the basis for their decision to cease to support OnStar analog systems effective January 1, 2008.
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38. In fact, however, nothing in the FCC ruling mandates or even permits defendants’ actions. By its terms, the FCC ruling does not regulate one way or the other defendants’ conduct. Indeed, the explicit text of the FCC regulation merely specifies what is required by cellular service providers (not defendants) for the period “until
February 18, 2008.” The text of the FCC ruling simply does not deal with actions following February 18, 2008. There is, therefore, no regulation that speaks to defendants’ unilateral decision to stop supporting analog OnStar systems, effective
January 1, 2008, as the FCC ruling in question plainly does not regulate conduct occurring after February 18, 2008.
39. Equally significant is that no FCC or other agency ruling regulates whether
GM is permitted to sell an analog OnStar system without disclosing that the system may be rendered obsolete or inoperable by defendants’ actions. Yet, as alleged more fully below, at the time that GM sold plaintiffs and the Class their analog OnStar systems,
defendants already knew that a transition to a digital network was being contemplated,
and that, if undertaken, such a switch in networks would render the analog systems in
plaintiffs’ vehicles inoperable. Yet, despite having this knowledge, GM made no
disclosure to plaintiffs or to the Class that their vehicles lacked the necessary equipment
to continue using OnStar after 2007, and instead, sold them equipment that defendants
knew would be rendered inoperable in short order.
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Defendants Knew But Did Not Disclose That A Switch To Digital Networks Was To Occur And That Such A Switch Would Render Analog OnStar Systems Inoperable
40. Although defendants only first disclosed to members of the Class in 2007 that their vehicles had analog OnStar systems that would be rendered inoperable effective
January 1, 2008, defendants, in fact, knew or should have known several years earlier that the switch from an analog to a digital network infrastructure would be occurring, and that such a switch would adversely impact the owners of analog and analog/digital-ready
OnStar systems. Despite this, defendants never disclosed to their customers that their vehicles had analog OnStar systems that would be rendered inoperable and/or obsolete once this switch to a digital network infrastructure took place. Instead, defendants
pocketed the money for the sale of the OnStar equipment and the monthly subscription
fees, all the while omitting this material fact.
41. Defendants knew or should have been well aware of the FCC’s proposal to
no longer require the maintenance of analog networks. That defendants knew or should
have known of the impending switch to a digital network infrastructure and its adverse
impact on users of analog and analog/ digital-ready OnStar users is evidenced by GM and
OnStar’s filings with the FCC.
42. Indeed, GM and OnStar filed comments and objections to the FCC’s proposal on July 2, 2001 and August 1, 2001. The August Reply Comments specifically state that they were made on behalf of OnStar and GM.
43. On or about March 29, 2002, OnStar submitted to the FCC a document
entitled, “Re: Ex Parte Submission, In the Matter of the Year 2000 Biennial Regulatory
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Review – Amendment of Part 22 of the Commission’s Rules to Modify or Eliminate
Outdated Rules Affecting Cellular Radio Telephone Service And Other Commercial
Mobile Radio Services, WT Docket No. 01-108.”
44. In its March 29, 2002 Ex Parte Submission to the FCC, OnStar explicitly recognized that a shift to a digital network infrastructure (to the exclusion of analog network capability), as was being contemplated at the time, would adversely affect
OnStar customers. In this regard, OnStar submitted to the FCC that:
If the Commission uses this proceeding to establish or propose a phase out AMPS, OnStar urges the Commission to take into account the consequences for the initial owners as well as the second and subsequent owners of the fleet of vehicles with installed analog systems. By the end of model Year 2006, Onstar estimates the industry installed analog base is likely to be six to seven million vehicles. Onstar believes any Commission action establishing a phase out for the analog compatibility requirement should permit these consumers the maximum opportunity to secure the safety, security and other benefits from their investment before implementing regulatory changes that could potentially strand that investment. Existing embedded analog systems are not susceptible to being easily replaced with digital technology and compatible antennas. With the ownership of a new vehicle averaging three to four years for lessees, and six to seven years for purchasers, the five-year time frame proposed by some commentators in this proceeding is insufficient to allow even the first owners of 2005 or 2006 model year vehicles with analog systems any substantial benefit from the safety and security features provided by their embedded telematics systems.
(emphasis added).
45. Following that Ex Parte submission to the FCC, representatives from
OnStar met with representatives from the FCC to discuss the adverse impact that would
be borne by owners and lessees of vehicles equipped with analog OnStar systems if a complete switch to an exclusively digital network infrastructure were to be put in place.
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As a follow-up to one of these meetings, OnStar submitted a letter dated May 21, 2002 to the FCC, memorializing the discussions between OnStar and FCC personnel. In that
May 21, 2002 letter, OnStar again reiterated that:
In addition, OnStar expressed the belief that any change to the analog compatibility standard should also take into account the investment of the owners of the current fleet of vehicles with analog systems. OnStar reiterated its recommendation that the Commission should not take action that would potentially strand that consumer investment before the owners have an opportunity to benefit from the investment for a reasonable period of time considering the average ownership and lease periods of vehicles over their product life.
46. Further, OnStar’s comments to the FCC acknowledged that the average car had a lifespan of 8-9 years, and that almost 40 percent of vehicles on the road were over
10 years old. OnStar also acknowledged that the “life saving benefits of OnStar are intended not only for initial vehicle purchasers but for subsequent owners over the life of the vehicle.” OnStar stated that its analog equipment would not work without an analog wireless phone network.
47. While GM, through OnStar, told these important facts to the FCC, GM
never told its customers that their equipment was analog-only and would not operate over
digital only cellular networks. Instead, GM continued to sell its vehicles with analog
telematic equipment and the promise that its OnStar product would continue to provide
“emergency services”. Defendants did not disclose this material fact to plaintiffs or the
putative Class until mid-2007, when OnStar first began notifying registered owners of
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analog and analog/digital-ready systems that the analog and analog/digital-ready OnStar systems in their vehicles would be rendered inoperable effective January 1, 2008.
48. A July 31, 2002 News Release from GM touted the benefits of a new
version of OnStar. “The next-generation GM automatic crash notification system linked
with OnStar will assist even more customers by taking this potentially life-saving service
beyond air bag deployments.” GM’s news release did not mention the fact that its new
system was analog and would not operate after 2007. That critical fact was not revealed
to GM’s customers.
49. On September 24, 2002 the FCC issued a Report and Order announcing that it would modify its rules to eliminate the requirement that wireless carriers provide analog service for mobile phone networks. The FCC provided for a 5 year transition period, which will end on February 18, 2008.
50. Thus, by September 24, 2002 GM knew or should have known beyond any reasonable doubt that the analog telematic equipment it had installed and sold, and was continuing to install and in its vehicles, would stop working by February 19, 2008.
51. GM knew or should have known that its analog OnStar equipment was certain to become useless, was not fit for its ordinary and intended use, and did not perform in accordance with the advertisements, marketing materials and warranties disseminated by GM, nor with the reasonable expectations of ordinary consumers.
52. However, even though GM knew that its equipment would become useless in a relatively short period, it intentionally failed to advise customers and concealed from them that their OnStar equipment was analog and would not work as of a date certain, or
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would require a costly upgrade to function and remain compatible with the OnStar
system, and continued to equip its vehicles with, and provide customers, analog
equipment, all the while touting OnStar as an important safety feature, and with knowledge that GM would not provide or make available compatible equipment, upgrades or repairs.
Defendants’ Affirmative Representations And Warranties
53. At the time of purchase or lease, defendants expressly and impliedly
represented to plaintiffs and the Class that their OnStar equipment would provide safety
and security and would function and be available for the life of the vehicle.
54. OnStar, acting as GM’s subsidiary and agent, designed and prepared
“OnStar Owner’s Guides” for GM dealers to distribute with OnStar equipped vehicles at
the time of purchase.
55. In the OnStar Owner’s Guide, OnStar and GM represented that:
(a) OnStar is a safety device that “uses sophisticated … technology to provide the communications link and seamless integration into their vehicle” so that
OnStar “Advisors” can provide plaintiffs with “a range of helpful services to protect
[plaintiffs] and [their] vehicle”;
(b) OnStar will put “Safety, Security and Convenience at [plaintiff’s]
Fingertips”;
(c) “The ease of the hands-free communications service allows
[plaintiff] to enjoy an even greater level of safety, security and convenience while
driving”;
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(d) OnStar’s service center and Advisors are available “24 hours a day, seven days a week… Even on weekends and holidays, there is always someone ready to help”;
(e) Plaintiffs can renew their Safe & Sound plan “for excellent protection, 24/7, 365 days a year”; and
(f) “If [plaintiff] purchased additional years [of service] or upgraded
[their] OnStar service, when [plaintiff] dispose of the vehicle, [plaintiffs]…may transfer the remaining service to the new owner”.
56. At the time of purchase or lease, GM provided all plaintiffs and Class members with a “Bumper to Bumper’ warranty covering “the complete vehicle” for three years or 36,000 miles, whichever occurs first. These warranties were expressly extended to subsequent owners and lessees.
57. In its new vehicle and extended warranties, GM expressly represented and warranted to the purchasers, lessees, and subsequent owners and lessees that during the warranty period GM would provide repairs, upgrades and if necessary, replacement, to
“correct any vehicle defect related to materials or workmanship” at no cost to them.
58. At the time of purchase or lease, GM expressly and impliedly represented
and warranted to plaintiffs and the Class that the OnStar equipment in their vehicles was
free of defects and would be suitable for use in the OnStar system.
59. GM’s implied warranties included its custom and practice of providing
repair parts and service for defective safety components for the reasonable life of a
vehicle. This custom and practice was part of plaintiffs’ bargain to purchase their
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vehicles. As GM and OnStar represented to the FCC, GM vehicles typically have a life of 8 to 9 years.
60. In December 2006, it became public knowledge that vehicles equipped
with analog OnStar equipment would not function after February 18, 2008 without
modification, upgrade or replacement of the analog equipment. At the time, GM’s North
American President, Troy Clark, affirmatively stated that GM would not “walk away
from” its analog OnStar customers or leave them “in the lurch”. These statements
extended GM’s various warranties for its analog OnStar equipment.
61. Thus, the OnStar equipment in plaintiffs’ vehicles and the vehicles of all
Class members was covered by their new vehicle warranties.
Defendants’ Disclosures of OnStar’s Dysfunction and Termination of Service
62. Beginning in February 2007, GM and OnStar sent hundreds of thousands of
similar letters to OnStar subscribers advising them of the imminent failure of their OnStar
equipment. Subscribers with analog/digital ready OnStar systems were advised that they
could continue to receive OnStar service by upgrading to analog/digital dual mode
equipment for a fee of $15 and entering into a service agreement for additional years.
63. At the time, GM’s OnStar internet website advised owners, lessees and
subscribers with analog-only equipment that their systems would not function because “a
decision was made [by General Motors] to support a different network in the cellular
industry”.
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64. Even though analog cellular service will be available throughout the
country for a substantial period after January 1, 2008, defendants unilaterally decided to
terminate OnStar service and effectively disable the OnStar equipment in plaintiffs’
vehicles and the vehicles of all class members as of January 1, 2008.
65. GM, directly and through its dealer network, refuses to repair and/or replace the OnStar equipment in plaintiffs’ vehicle and the vehicles of other purchasers and lessees so that it will operate on digital cellular networks.
Additional Facts As To All Class Members
66. Plaintiffs and all Class members purchased and leased their vehicles and purchased OnStar service for personal, family and household use.
67. Plaintiffs and the Class have performed all of their obligations with respect
to their OnStar accounts.
68. Plaintiffs and all Class members purchased the same or similar incompatible, defective and unsuitable analog OnStar equipment, received the same representations, have the same express and implied agreements for OnStar equipment and warranties, received the same notices of termination, and have or will sustain the same or similar damages.
69. The analog OnStar equipment in plaintiffs’ vehicles and all Class members’
vehicles was manufactured with poor workmanship, and at the time of purchase and/or
lease was faulty, defective and dysfunctional. These defects and poor workmanship
occurred and manifested themselves during the relevant warranty period and were made
known to GM during the relevant warranty period.
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70. The analog OnStar equipment in plaintiffs’ vehicles and all Class members’
vehicles is not suited for its intended purpose and is unmerchantible.
71. Defendants have refused to provide plaintiffs and all Class members with
OnStar safety and security products as promised, and have failed and refuse to provide
necessary repairs.
72. Contrary to GM’s written warranties, GM and OnStar have stated on the
OnStar website that they do not believe the imminent failure of the analog OnStar equipment is covered under any applicable warranty.
73. Plaintiffs believe that defendants have acted in the same or similar manner
with respect to all Class members.
74. Solely as a result of defendants’ conduct:
(a) plaintiffs and all Class members will be required to incur significant out of pocket costs and expenses to replace and/or repair the analog OnStar equipment in their vehicles to function with digital cellular service;
(b) plaintiffs and all Class members will suffer significant depreciation and the loss of value of their vehicles due to their nonfunctional analog OnStar systems; and
(c) plaintiffs and all Class members will be exposed to an increased risk of serious personal injury and harm.
Facts As To Representative Plaintiff Morris
75. In January 2004, plaintiff Howard Morris purchased a new GMC Yukon
XL from O’Neil GMC, an authorized GM dealer in Warminster, Pennsylvania.
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Unbeknownst to him at the time of purchase, his vehicle was equipped with analog
OnStar equipment. He has continuously subscribed to the OnStar service since acquiring
this vehicle.
76. By form letter dated March 15, 2007, GM, through its OnStar subsidiary, advised Mr. Morris that his hardware was analog, but could be upgraded to digital for an additional cost of $15 plus a new subscription fee; and that without the upgrade and additional payment, Mr. Morris’ OnStar equipment would not work after December 31,
2007.
Facts As To Representative Plaintiff Johnson
77. In March 2005, plaintiff Bruce Johnson Purchased a Buick Park Avenue
sedan from Liberty Buick, an authorized GM dealer in Peoria, Arizona. Unbeknownst to
him at the time of purchase, Mr. Johnson’s vehicle was equipped with analog-only
OnStar equipment. Plaintiff Johnson also purchased an extended GM warranty for the
vehicle. His extended warranty was expressly extended to subsequent owners and
lessees. He has continuously subscribed to the OnStar service since acquiring this
vehicle.
78. By form letter dated February 12, 2007, GM, through its OnStar subsidiary, advised Mr. Johnson that his OnStar equipment was “analog-only”, meaning that it was not capable of receiving or transmitting digital signals, that it would not function and would be completely inoperable after December 31, 2007. GM further advised that it would not repair, modify or replace his OnStar equipment.
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79. On February 12, 2007, Mr. Johnson’s Buick had less than 36,000 miles and was less than three years old.
Facts As To Representative Plaintiff Jacovelli
80. Plaintiff Jack Jacovelli purchased two GM vehicles, both through
DiSimone Cadillac in Marlton, NJ, an authorized GM dealer. He purchased a 2002
Cadillac DTS in September 2003 and a 2005 Cadillac STS in June 2006. Unbeknownst
to him at the time of purchase, his vehicles were equipped with analog OnStar
equipment. He has continuously subscribed to the OnStar service since acquiring this
vehicle.
81. By form letters, GM, through its OnStar subsidiary, advised Mr. Jacovelli that with respect to his 2002 Cadillac DTS, his hardware was analog-only , would not function after December 31, 2007, and that his OnStar service was terminated as of
January 1, 2008. He was further advised that GM would not repair, replace or upgrade his OnStar equipment in this vehicle. With respect to his 2005 Cadillac STS, GM advised Mr. Jacovelli that his hardware was analog but could be upgraded to digital for
an additional cost of $15 and an additional subscription fee; and that without the upgrade
and additional payment, Mr. Jacovelli’s OnStar equipment would not work after
December 31, 2007.
Facts As To The Gordon Representative Plaintiffs
82. In March 2002, plaintiffs Robert and Sarah Gordon purchased a new 2002
Cadillac from an authorized GM dealer in Bristol, Bucks County, Pennsylvania.
Unbeknownst to them at the time of purchase, their vehicle was equipped with analog-
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only OnStar equipment. They have continuously subscribed to the OnStar service since acquiring this vehicle.
83. By form letter dated February 12, 2007, OnStar advised the Gordons that their vehicle was equipped with analog-only OnStar equipment, that the equipment would not function after December 31, 2007 and that their service would terminate as of that date. They were further advised that GM would not repair, replace or upgrade their
OnStar equipment.
Facts As To Representative Plaintiff Weaver
84. In 2002, Mr. Weaver purchased a Cadillac Eldorado from an authorized
GM dealer. Unbeknownst to him at the time of purchase, his vehicle was equipped with
analog-only OnStar equipment.
85. By form letter dated March 20, 2007, OnStar advised Mr. Weaver that his
OnStar equipment was analog-only, would not function after December 31, 2007, and that his OnStar service was terminated as of January 1, 2008. He was further advised that
GM would not repair, replace or upgrade his OnStar equipment.
Facts As To Representative Plaintiff Maurer
86. In November 2004, Ms. Maurer purchased a 2004 Chevrolet Trailblazer from an authorized GM dealer. Unbeknownst to her at the time of purchase, her vehicle
was equipped with analog-only OnStar equipment. She has continuously subscribed to
the OnStar service since acquiring this vehicle.
87. By form letter March 20, 2007, OnStar advised Ms. Maurer that her
OnStar equipment was analog-only, would not function after December 31, 2007 and that
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her service would terminate as of that date. She was further advised that GM would not
repair, replace or upgrade her OnStar equipment.
Facts As To Representative Plaintiff Rochow
88. On or about August 19, 2003, Mr. Rochow purchased a 2004 Buick Park
Ave from a GM dealer in Connecticut. Unbeknownst to him at the time of purchase, his
Buick was equipped with analog-only OnStar equipment. He has continuously subscribed to the OnStar service since acquiring this vehicle.
89. By form letter dated March 20, 2007, OnStar advised Mr. Rochow that his
OnStar equipment was analog only, would not function after December 31, 2007 and that his service would be terminated as of that date. He was further advised that GM would not repair, replace or upgrade his OnStar equipment.
Facts As To Representative Plaintiff Nary
90. On or about October 28, 2003, Ms. Nary purchased a 2003 Buick Park
Avenue from an authorized GM dealer. Unbeknownst to her at the time of purchase, her
vehicle was equipped with analog-only OnStar equipment. She has continuously
subscribed to the OnStar service since acquiring this vehicle.
91. By form letter dated February 12, 2007, OnStar advised Ms. Nary that her
OnStar equipment was analog-only, would not function after December 31, 2007 and that
her OnStar service was terminated as of January 1, 2008. She was further advised that
GM would not repair, replace or upgrade her OnStar equipment.
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Facts As To Representative Plaintiff Christ
92. On or about August 19, 2003, Ms. Christ purchased a 2002 GMC Yukon
from a GM dealer in New York. Unbeknownst to her at the time of purchase, her GMC
Yukon was equipped with analog-only OnStar equipment. She has continuously
subscribed to the OnStar service since acquiring this vehicle.
93. By form letter dated February 26, 2097, OnStar advised Ms. Christ that her
OnStar equipment was analog-only, would not function after December 31, 2007, that
GM that their OnStar service was terminated as of January 1, 2008. She was further advised that GMC would not repair, replace or upgrade her OnStar equipment.
Facts as to Representative Plaintiff Berry
94. Mr. William Berry purchased a 2002 Chevrolet C1500 Tahoe from an
authorized GM dealer. Unbeknownst to him/her at the time of purchase, his vehicle was
equipped with analog-only OnStar equipment.
95. By form letter, OnStar advised Mr. Berry that his OnStar equipment was analog-only, would not function after December 31, 2007, and his OnStar service was terminated as of January 1, 2008. He was further advised that GM would not repair, upgrade or replace his OnStar equipment.
Facts as to Representative Plaintiff Peckat
96. On or about June 24, 2002 Mr. Peckat purchased a 2002 GMC Sierra from
an authorized GM dealer in Michigan. Unbeknownst to him at the time of purchase, his
GMC Sierra was equipped with analog-only OnStar equipment. He has continuously
subscribed to the OnStar service since acquiring this vehicle.
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97. By form letter dated March 6, 2007, OnStar advised Mr. Peckat that his
OnStar equipment was analog-only, would not function after December 31, 2007 and that his OnStar service was terminated as of January 1, 2008. He was further advised that
GM would not repair, upgrade or replace his OnStar equipment.
Facts As To The Representative Plaintiffs Susan and Norman Nelson
98. In July 2004, plaintiffs Susan and Norman Nelson purchased a new 2004
Cadillac Escalade from Rydell. They also purchased an extended warranty on the vehicle at that time which is still in effect. Unbeknownst to plaintiffs Susan and Norman Nelson at the time of purchase, their 2004 Escalade was equipped with OnStar equipment that could only operate on an analog system. They have continuously subscribed to the
OnStar service since acquiring this vehicle
99. By form letter dated April 24, 2007, addressed to plaintiff Susan Nelson,
GM, through its OnStar subsidiary, advised these plaintiffs that the hardware on their
2004 Escalade was analog and will not operate on a digital network unless it is upgraded
for an additional cost of $15.00, plus a new subscription fee of $199. Without the
upgrade and additional payment, the letter stated that the OnStar equipment will cease to
operate after December 31, 2007.
Estoppel From Pleading and Tolling of Applicable Statutes of Limitation
100. Any applicable statute of limitations that might otherwise bar plaintiffs’ and
Class Members’ claims should be tolled because notwithstanding the exercise of due diligence, plaintiffs and the Class could not reasonably have been expected to learn or discover the fact that they were deceived, and that material information concerning the
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telematic equipment was concealed from them. Therefore, the claims being asserted by plaintiffs and the Class present the archetypical scenario in which the discovery rule is applicable.
101. GM and OnStar are also estopped from relying on any statutes of limitation by virtue of their acts of fraudulent concealment.
102. By reason of the FCC’s proposed rule making and GM and OnStar’s participation in those rule making proceedings, GM and OnStar knew or should have known that analog OnStar equipment would not function after February 18, 2008 and that they intended to shut down OnStar service as of December 31, 2007. Notwithstanding this knowledge, GM and OnStar concealed from owners and lessees of OnStar equipped vehicles the impending failure of their OnStar equipment.
Class Action Allegations
103. Plaintiffs bring this action individually and on behalf of the following class:
All individuals in the United States who own or lease GM vehicles equipped with analog OnStar equipment and who purchased or leased their vehicle after May 17, 2001.
Excluded from the Class are business or fleet purchasers of GM vehicles; and GM and OnStar, and any of their respective subsidiaries, affiliates, officers and directors, or entities in which either defendant has a controlling interest.
104. Plaintiffs reserve the right to modify the Class definitions after discovery and at any time up to and including trial.
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105. Numerosity. The Class is so numerous that joinder of all members is impracticable.
(a) Plaintiffs believe that GM sold and installed as original factory equipment OnStar equipment to subscribers who own or lease the following vehicles in the United States: Chevrolet, Pontiac, Oldsmobile, Buick, Cadillac, GMC, Saturn and
Saab .
(b) There are over 450,000 OnStar subscribers who own or lease GM
vehicles equipped with analog-only equipment who have received notice of termination,
who will have stranded investments in their motor vehicles, and who may be stranded on
the highways and exposed to an increased risk of serious personal injury and harm if GM
does not repair and/or replace their analog OnStar equipment or arrange for continued
OnStar service.
(c) There are approximately 1,500,000 OnStar subscribers who own or
lessee GM vehicles with analog equipment who will require costly upgrades for their
equipment to function and to receive service after December 31, 2007.
106. Commonality. There are numerous questions of law and fact that are
common to all Class members and that predominate over individual questions, if any.
(a) Common questions of fact include but are not limited to:
(i) All Class members purchased or leased a GM vehicle with
analog Onstar equipment.
(ii) OnStar equipment is a consumer product for all class
members.
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(iii) All Class members’ OnStar equipment was defective and not
suited for use with the OnStar system.
(iv) All Class members’ OnStar equipment will not function after
December 31, 2007.
(v) GM and OnStar made the same express and implied
representations and warranties to all class members who purchased GM
vehicles.
(vi) GM maintained the same or similar customs, policies and
practices regarding service and repairs for safety components.
(vii) GM and OnStar concealed and failed to disclose the same
information regarding the defects in its analog OnStar equipment.
(viii) GM and OnStar concealed and failed to disclose termination
of analog service to their subscribers with analog OnStar equipment.
(ix) OnStar refuses to provide OnStar service for all Class
members.
(x) All Class members were given the same or similar notices of
termination of analog service.
(xi) GM refuses to provide Class members with repairs,
replacements, devices or other means to receive OnStar digital service.
(xii) All Class members have suffered the same or similar damage
as a result of defendants’ conduct.
(b) Common questions of law include but are not limited to:
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(i) Is Michigan law applicable to all Class members and all
claims?
(ii) Did GM and OnStar engage in unfair and deceptive trade
practices under the Michigan Consumer Protection Act (“MCPA”)?
(iii) Did GM and OnStar fail to disclose and/or omit material facts
relating to their OnStar equipment?
(iv) Did GM its express warranties?
(v) Did GM breach its implied warranties of merchantability?
(vi) Did GM its implied warranties of fitness for particular
purpose?
(vii) Are GM and OnStar legally responsible for the Class’
damages?
(viii) Is the Class entitled to injunctive or declaratory relief?
(ix) Did OnStar breach its express and implied contract to provide
Class members with OnStar service?
107. Typicality. Plaintiffs’ claims are typical of the claims of class and
members. Plaintiffs are members of the Class. Plaintiffs are asserting the same rights,
making the same claims, and seeking the same relief for themselves and for all other class
members.
108. Adequate and Fair Representation. Plaintiffs will fairly and adequately represent and protect the interests of the class. Plaintiffs have no interests that conflict
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with or which are adverse to the interests of other class members. Plaintiffs have retained qualified counsel who are able and experienced in class action litigation.
109. Fairness and Efficiency. A class action is a fair and efficient method to adjudicate this controversy.
(a) Common questions of law and fact predominate over individual
questions.
(b) The claims of plaintiffs and the class are based on the same common
nucleus of operative facts. Proof of plaintiffs’ claims will effectively prove the claims of
all other Class members.
(c) Resolution of the claims of the Class will depend on the application
of common principles of law.
(d) A class action will permit a large number of relatively small claims
involving similar facts and legal issues to be resolved efficiently in one proceeding based
on common proof.
(e) This case is manageable as a class action in that:
(1) The material evidence is relatively simple and centralized.
(2) GM and OnStar maintain computer and business records which will enable plaintiffs to identify class members and establish liability and damages.
(3) Damages for Class members can be calculated in the same or similar manner.
(f) The claims of individual class members are not sufficiently large enough to support litigation on an individual, case-by-case basis.
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(g) A class action will result in an orderly and expeditious administration of claims and will foster economies of time, effort and expense.
(h) A class action will contribute to uniformity of decisions concerning defendant’s conduct.
(i) This class action is the best available method, and indeed the only realistic method, by which plaintiffs and the class can seek redress for the harm caused by defendants.
Count I
Plaintiffs And The Class v. GM and OnStar Violations Of The Michigan Consumer Fraud Act
110. Plaintiffs incorporate all other paragraphs of the complaint by reference.
111. As plaintiffs and all Class members used their GM vehicles and OnStar equipment and service for personal, family and household purposes, GM and OnStar
engaged in trade or commerce within the meaning of the MCPA §445.902(g).
112. Plaintiffs and all other Class members who purchased vehicles
manufactured by GM are consumers and defendants GM and OnStar are sellers and
therefore subject to the MCPA.
113. GM’s and OnStar’s statements, representations, omissions, and practices
made in connection with their sale or lease of OnStar equipment and Service as alleged
herein were in violation of the following sections of the MCPA § 445.903:
a. § 445.903(c) by representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they do not have or that a person has sponsorship, approval, status, affiliation, or connection,
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which he does not have.
b. § 445.903(n) by causing a probability of confusion or of misunderstanding as to the legal rights, obligations or remedies of a party to a transaction.
c. § 445.903(p) by disclaiming or limiting the implied warranty of merchantability and fitness for use, without clearly and conspicuously disclosing a disclaimer.
d. § 445.903(s) by failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.
e. § 445.903(bb) by making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.
f. § 445.903(cc) by failing to reveal facts which are material to the transaction in light of representations of fact made in a positive manner.
g. §445.903(g) by failing to advertise or represent goods and services with intent not to dispose of them as advertised and represented.
h. §445.903(y) by failing to provide promised benefits and making gross discrepancies between oral and written representations.
114. Defendants’ unilateral decision to render the Class’ OnStar systems obsolete
effective January 1, 2008, to wait until 2007 to disclose to customers that their analog
systems will be obsolete and that they will be without OnStar service, their refusal to
upgrade or repair analog OnStar systems without charge, and their refusal to compensate
Class members also amounts to unfair, unconscionable and/or deceptive business practices in violation of the MCPA.
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115. GM and OnStar’s violations of the MCPA proximately caused damages to
plaintiffs and Class members who purchased or leased vehicles manufactured by GM and
will cause them to suffer imminent harm and loss, including but not limited to:
a. the amount paid for their OnStar equipment; and
b. diminution in the value of their vehicles; and
c. the cost for repair, replacement or upgrade; and
d. additional fees and costs to renew service; and
e. their inability to obtain OnStar service after December 31, 2007.
116. Plaintiffs and all members of the Class who purchased GM vehicles and were OnStar subscribers as of the dates of notice of termination of OnStar service, will suffer irreparable harm, which may soon be immediate in nature, if GM and OnStar do not maintain OnStar service for their vehicles, or alternatively, provide them with repairs, replacements or compatible devices to communicate with OnStar and broadcast their location, and provide them with confidential OnStar access numbers.
117. Plaintiffs and these Class members lack an adequate remedy at law to
compel GM and/or OnStar to continue to provide them with OnStar service, and/or
repairs, and/or replacements, and/or alternative compatible devices and confidential
access numbers. Plaintiffs and these Class members cannot obtain such relief from other
sources.
118. Plaintiffs and these Class members are entitled to injunctive and declaratory
relief to compel GM and OnStar to provide them with OnStar service or repair and/or
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replace the defective OnStar system, and/or provide alternative compatible devices and confidential access numbers.
WHEREFORE, plaintiffs, individually and on behalf of all Class members, request judgment in their favor and against defendants GM and OnStar, jointly and severally, and request the following relief:
(a) certification of the Class, the appointment of plaintiffs as class representatives, and the appointment of plaintiffs’ counsel as class counsel;
(b) compensatory damages for the Class to be determined at trial, together with interest, costs attorneys’ fees;
(c) exemplary damages;
(d) injunctive relief enjoining the defendants from engaging in the unlawful conduct described herein; and
(e) such other relief as may be just, necessary or appropriate.
Count II
Plaintiffs and the Class v. GM Breach of Express Warranty
119. Plaintiffs incorporate all other paragraphs of the complaint by reference.
120. GM expressly warranted to plaintiffs and all other Class members who
purchased or leased GM vehicles that the OnStar equipment in their vehicle would be free of defects in workmanship and materials during the warranty period, and that GM would repair or replace such defective equipment at no cost to plaintiffs and all other
Class members.
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121. The OnStar equipment in all GM vehicles purchased or leased by plaintiff and other Class members was covered by their new motor vehicle warranties. The
OnStar equipment in Mr. Johnson’s vehicle and numerous other GM vehicles was covered by an extended warranty purchased from and issued by GM.
122. At the time that GM gave these Class members notice that their OnStar
equipment was defective, Mr. Johnson and numerous other Class members were within
the mileage and term of their original and extended warranties.
123. The OnStar equipment sold and delivered to plaintiffs and all other Class members who purchases or leased vehicles manufactured by GM were manufactured with faulty and defective workmanship and materials, are defective, and will not function and will not perform its intended purpose during the warranty period.
124. Contrary to its warranties, GM has failed and refused to repair or replace
plaintiffs’ defective OnStar equipment and the defective equipment of all other Class
members who purchased GM vehicles, so that will operate on digital cellular networks,
at no cost to plaintiffs and the class.
125. GM has breached its express warranties to plaintiffs and all other Class members to repair and/or replace its OnStar equipment so that it is in good operational condition and repair and suitable for use in the OnStar system.
126. GM’s breach of these express warranties proximately caused damages to plaintiffs and members of the class.
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WHEREFORE, plaintiffs, individually and on behalf of all Class members, request judgment in their favor and against defendant, GM, and request the following relief:
(a) certification of the plaintiff Class, the appointment of plaintiffs as Class representatives, and the appointment of plaintiffs’ counsel as Class counsel;
(b) compensatory damages for the Class to be determined at trial, together with interest, costs attorneys’ fees;
(c) such other relief as may be just, necessary or appropriate.
Count III
Plaintiffs and the Class v. GM Breach Of Implied Warranties
127. Plaintiffs incorporate all other paragraphs of the complaint by reference.
128. At the time of contracting, GM impliedly warranted to plaintiffs and to all other Class members who purchased or leased GM vehicles that their OnStar equipment was of merchantable quality and suitable for ordinary use.
129. The OnStar equipment sold, leased and delivered to plaintiffs and all other
Class members who purchased or leased GM vehicles was not of merchantable quality and was not suited for ordinary use.
130. GM has breached its implied warranty of merchantability of its OnStar equipment to plaintiffs and all Class members who purchased or leased GM vehicles.
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131. GM has breached its implied warranty of fitness for a particular purpose of
its OnStar equipment to plaintiffs and all Class members who purchased or leased GM vehicles.
132. GM’s breach of warranties proximately caused damages to plaintiffs and all
Class members who purchased or leased GM vehicles.
WHEREFORE, plaintiffs, individually and on behalf of all Class members,
request judgment in their favor and against defendant, GM, and request the following
relief:
(a) certification of the Class, the appointment of plaintiffs as class
representatives, and the appointment of plaintiffs’ counsel as class counsel;
(b) compensatory damages for the Class to be determined at trial, together with
interest, costs attorneys’ fees;
(c) such other relief as may be just, necessary or appropriate.
Count IV
All Plaintiffs and the Class v. OnStar Breach of Contract
133. Plaintiffs incorporate all other paragraphs of the complaint by reference.
134. By reason of its aforesaid promises, representations and conduct, OnStar
has breached its express and implied promises to provide OnStar services to all plaintiffs
and all other Class members.
135. By terminating OnStar service, OnStar materially breached its duties of good faith and fair dealings owing to plaintiffs and the Class.
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136. OnStar’s breach of contract has proximately caused damages to all plaintiffs and members of the Class.
WHEREFORE, plaintiffs, individually and on behalf of all Class members, request judgment in their favor and against defendant OnStar, and requests the following relief:
(a) certification of the plaintiff Class, the appointment of plaintiffs as the class representatives, and the appointment of plaintiffs’ counsel as Class counsel;
(b) compensatory damages for the Class to be determined at trial, together with interest and costs; and
(c) such other relief as may be just, necessary or appropriate.
JURY DEMAND
Plaintiffs demand a jury trial of 12.
Respectfully submitted,
Date: July 25, 2007 /s/ Marc L. Newman E. Powell Miller (P39487) Marc L. Newman (P51393) THE MILLER LAW FIRM, P.C. 950 W. University Drive, Suite 300 Rochester, Michigan 48307 (248) 841-2200 Phone (248) 652-2852 Fax [email protected] www.millerlawpc.com
36 2:07-cv-12036-SFC-RSW Doc # 13 Filed 07/25/07 Pg 37 of 39 Pg ID 111
Ronald J. Smolow, Esquire Michael H. Landis, Esquire SMOLOW & LANDIS 204 Two Neshaminy Interplex Trevose, PA 19053-6933 [email protected] (215) 244-0880 Phone (215) 244-0425 Fax
Jeffrey L. Kodroff, Esquire John A. Macoretta, Esquire SPECTOR, ROSEMAN & KODROFF, P.C. 1818 Market Street, Suite 2500 Philadelphia, PA 19103 (215) 496-0300 Phone (215) 496-6611 Fax
Marc H. Edelson, Esquire EDELSON & ASSOCIATES, L.L.C. 45 West Court Street Doylestown, PA 18901 (215) 230-8043 Phone
Steven E. Goren, Esquire Goren, Goren & Harris, P.C. 30400 Telegraph Road, Suite 470 Bingham Farms, MI 48025-5818 Phone: 248-540-3100 Fax: 248-540-3136
Scott Kamber, Esquire Ethan Preston, Esquire Kamber & Associates, LLC 11 Broadway, 22nd Floor New York, NY 10004 Phone: 646-964-9600 Fax: 212-202-6364
37 2:07-cv-12036-SFC-RSW Doc # 13 Filed 07/25/07 Pg 38 of 39 Pg ID 112
Roy A. Katriel, Esquire The Katriel Law Firm 1101 30th Street, NW Suite 500 Washington DC 20007 Phone: 202-625-4342 Fax: 202-330-5593
George A. Shohet, Esquire Law Offices of George A. Shohet 245 Main Street, Suite 310 Venice, CA 90291-5216 Phone: 310- 452-3176 Fax: 310- 452-2270
Attorneys for Plaintiffs
38 2:07-cv-12036-SFC-RSW Doc # 13 Filed 07/25/07 Pg 39 of 39 Pg ID 113
CERTIFICATE OF SERVICE
I hereby certify that on July 25, 2007, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to the following:
• Michael P. Cooney, Esquire; [email protected],[email protected]
• David H. Fink, Esquire; [email protected],[email protected]
• E. Powell Miller, Esquire; [email protected],[email protected]
• Marc L. Newman, Esquire; [email protected],[email protected]
• Thomas M. Schehr, Esquire; [email protected],[email protected]
And I hereby certify that I have sent notification of filing by electronic transmission to the following non-ECF participants:
• Timothy A. Daniels, Esquire, [email protected]
• Ethan Preston, Esquire; [email protected]
• Jeffrey Kodroff, Esquire; [email protected]
• John Macoretta, Esquire; [email protected]
• Marc Edelson, Esquire; [email protected]
• Roy A. Katriel, Esquire; [email protected]
• Scott Kamber, Esquire; [email protected]
• Steven E. Goren, Esquire; [email protected]
• George A. Shohet, Esquire; [email protected]
/s/ Marc L. Newman E. Powell Miller (P39487) Marc Newman (P51393) THE MILLER LAW FIRM, P.C. Attorneys for Plaintiffs 950 W. University Drive, Suite 300 Rochester, Michigan 48307 (248) 841-2200 Phone [email protected]